July 23, 2018 Edition of The Situation Report

TESTIMONY

ENROLLMENT REQUIREMENT

EO 38

PEPPER

HCA testifies at DOL hearing on exempting certain meal and sleep periods from compensable hours.

As extensively reported, MLTC contractors must enroll in Medicaid as of 7/1. In latest development, state instructs plans not to terminate contracts yet, pending further info from CMS.

Executive Order No. 38 appeal heads to New York’s highest court for arguments in September. HCA is a co-petitioner.

Medicare home health providers can now access their latest PEPPER reports which show areas of potential compliance risk for continued internal monitoring.

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UPCOMING PROGRAMS Webinar: The Aide’s Role in Caring for Older Adults in Home Care (Aug. 9) Senior Financial Managers Retreat (Sept. 6 and 7) New Paltz Webinar: The Aide’s Role in Quality Improvement in Home Care (Sept.

13) The Situation Report is on a biweekly summer schedule. Our next edition will be on August 6.

HCA will notify you of breaking news by e-mail alert.

Your Source for HOME CARE News, Policy and Advocacy

Vol. 3, Issue 31 | July 23, 2018

HCA Memo Details 2019 HHPPS Proposal, Plus 2020 PDGM with Impact Projections for All NY CHHAs As circulated to members last week, HCA has prepared a detailed policy memo on the home health prospective payment system (HHPPS) proposed rule for 2019 recently posted by the U.S. Centers for Medicare and Medicaid Services (CMS). The memo is available on our website at https://hca-nys.org/category/policy-memos.

The memo describes the various HHPPS payment adjustments proposed for calendar year 2019, including: a newly re-based market-basket update; another recalibration of the caseSee HHGM p. 4

DOH Seeks Comments on LHCSA Need Methodology due Oct. 12 The state Department of Health (DOH) has issued a letter seeking comments and recommendations for its development of a public need methodology for Licensed Home Care Services Agencies (LHCSAs). Comments are due October 12.

As extensively reported, this year’s state budget included a series of provisions directly impacting the LHCSA infrastructure, including: a two-year moratorium (until April 1, 2020) on

INSIDE HCA Memo Details 2019 HHPPS Proposal, Plus 2020 PDGM.............................1 DOH Seeks Comments on LHCSA Need Methodology........................................1 DOH Seeks Comments by Wednesday on LHCSA Contract Limit Guidance............3 A Message from HCA Sponsor Simione Healthcare Consultants.....................4 Rate Coverage of Min. Wage Increase for MLTCs and Providers a Major Focus.........5 Member Hiring Announcements....................................................................6 HCA’s Testimony Opens Hearing on 24-hour/live-in Rule...................................7 A Message from HCA Sponsor RBC Limited.......................................................7 CMS Proposes Rule on Payment Diversion Exceptions.....................................8 Despite 7/1 Deadline, MCOs Advised Not to Terminate Provider Contracts.......9 Court of Appeals to Hear EO No. 38 Challenge...............................................10 CHHA and Personal Care Medicaid Cost Reports Due Soon..........................10

See LHCSA p. 2 Court Hearing Held on Suit Against FI Advertising Provision............................11 Important Upcoming Deadlines and Due Dates.............................................11 EVV Delay Legislation Passes U.S. Senate.......................................................12 New Home Health PEPPER Now Available.......................................................12 NYS Health Foundation Announces Funding for Conference Participation.......13 CMS Proposes Changes to DME Competitive Bidding......................................14 HCS Troubleshooting Guide Posted................................................................14 Guidance Issued on Registries and FLSA Applicability.....................................14 NHTD Waiver Application Approved..............................................................15 Workers’ Comp Board Makes Technical Specs for CMS-1500 Initiative.............15 Worker’s Compensation Rates Expected to Decrease....................................15 April Global Cap Report: Medicaid Spending $8M Above Projections...............16 Resources...........................................................................................................16

The Situation Report: the Home Care Association of New York State LHCSA from p. 1 new LHCSA applications (with certain exceptions); limits on the number of LHCSAs that an MLTC can contract with (see related p. 3 story); and an authorization for DOH to implement a public need methodology for LHCSAs by April 1, 2020.

While a need methodology exists for CHHAs and other sectors, no “public need” or “financial feasibility” requirements are in place to obtain a LHCSA certificate, though LHCSAs do undergo an application process through the Public Health and Health Planning Council (PHHPC) for character and competency review.

According to the state’s comment request letter (available at https:// hca-nys.org/wp-content/uploads/2018/07/9594a968-7de4-4c67-b52d62fa0234c9cb.pdf), there are currently 1,100 approved LHCSA operators with 1,450 licensed sites – though it is not known what percentage of these licensed providers are actually active and/or delivering services.

Members interested in weighing in can send their comments and recommendations to the state at ALTCteam@health.ny.gov with the subject line “LHCSA Need” by October 12. HCA asks that members please also “cc” us on your comments and provide us directly with recommendations for inclusion in our comments. Please send these communications to info@hcanys.org.

LHCSA Reg. Changes Featured at Sept. 6 & 7 Finance Retreat While all of these developments are percolating, HCA’s upcoming Senior Financial Managers Retreat includes a segment with legal and policy expert Meghan McNamara, Principal at Hinman Straub P.C., about all of the changes affecting LHCSAs and entities who contract with them.

Ms. McNamara is a go-to adviser on all facets of regulatory representation, including certificate of need applications and licensure applications. She’ll have all the latest information and answers to your questions on how to navigate the intricacies of LHCSA contract limits, the moratorium (and any exceptions to it), and what may be in store for the upcoming public need methodology development process.

Please register now at https://hca-nys.org/wp-content/uploads/ 2018/06/HCA-Senior-Financial-Managers-Retreat-Brochure-2018.pdf.

Home Care Association of New York State (HCA) 388 Broadway, 4th Floor, Albany, NY 12207 Tele: 518-426-8764; Fax: 518-426-8788; Website www.hcanys.org

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Volume 3, No. 31 July 23, 2018 

The Situation Report is a weekly publication of the Home Care Association of New York State (HCA). Unless otherwise noted, all articles appearing in The Situation Report are the property of the Home Care Association of New York State. Reuse of any content within this newsletter requires permission from HCA. Joanne Cunningham HCA President jcunningham@hcanys.org Roger L. Noyes Director of Communications, Editor of The Situation Report rnoyes@hcanys.org Al Cardillo Executive V ice President acardillo@hcanys.org Patrick Conole Vice President, Finance & Management pconole@hcanys.org Andrew Koski Vice President, Program, Policy & Services akoski@hcanys.org Laura Constable Senior Director, Membership & Operations lconstable@hcanys.org Celisia Street Director of Education cstreet@hcanys.org Mercedes Teague Finance Manager mteague@hcanys.org Jenny Kerbein Director of Governance & Graphic Design jkerbein@hcanys.org Billi Wilson Manager, Meetings & Events bwilson@hcanys.org Teresa Brown Administrative Assistant tbrown@hcanys.org

The Situation Report: the Home Care Association of New York State

Volume 3, No. 31 July 23, 2018 

DOH Seeks Comments by Wednesday on LHCSA Contract Limit Guidance Late last week, HCA received draft guidance from the state Department of Health (DOH) outlining its policy on the limits for partial capitation MLTC contracts with LHCSAs provided for this year’s state budget. These limits, which portend major impact on providers, MLTCs and patients, apply beginning in October.

The Department has asked for responses and comments on the draft by this Wednesday, July 25.

Members should download a copy from HCA’s website at https://hca-nys.org/wp-content/uploads/2018/ 07/LHCSA-draft-guidance-distributed-7-20-18.pdf. Comments and recommendations on the draft should be sent to HCA by tomorrow morning by e-mailing akoski@hcanys.org so that we can include members’ comments in HCA’s response to DOH this Wednesday.

The draft guidance outlines: consumer notification requirements; the ratios for contract limits in 2018 and 2019 and examples; network adequacy policies; exceptions and special circumstances; and the process for seeking an exception. This year’s state budget requires DOH to develop a methodology for the contract changes by October 1.

We will share our final comments with the membership in an upcoming communication.

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Volume 3, No. 31 July 23, 2018

The Situation Report: the Home Care Association of New York State



HHGM from p. 1 mix weights; application of the budget neutrality adjustment factor; calculations for Low Utilization Payment Adjustments (LUPAs); a newly tiered version of the home health rural add-on; and the latest wage index changes. All told, CMS estimates a 2.1 percent increase in national Medicare home health payments (or $400 million) in 2019.

HCA’s memo also offers specifics on the new Patient-Driven Groupings Model (PDGM) that CMS intends to advance in 2020.

As reported in recent editions of The Situation Report and other communications, PDGM is a successor to the previously proposed Home Health Groupings Model which would change the payment system to 30-day units (distinct from the current 60-day HHPPS episodes) and make related case-mix changes that comprise the biggest overhaul to Medicare home health payments in 20 years.

Impact Projections Available for All NYS CHHAs To assist in your impact analysis, CMS has created a detailed spreadsheet showing how each home health agency in the country would potentially fare under the proposed PDGM. HCA reviewed this data and has created our own spreadsheet, specifically for home health agencies in New York. On the spreadsheet, agencies can identify themselves by their Medicare provider number in the first column and determine whether CMS projects a potential gain or loss (losses are indicated in the last column with red text) under the new PDGM model.

HCA has posted this spreadsheet to our members-only HCA Data website. When you visit HCA Data, see the top listing titled “NEW: Analysis of PDGM Impact on All CHHAs.” To access the HCA Data page, you must have an HCA website user account. (If you do not have an account or need assistance, please e-mail HCA’s Communications Director Roger Noyes at rnoyes@hcanys.org.)

Join us on September 6 and 7 For More Information and Insights HCA’s upcoming Senior Financial Managers Retreat on September 6 and 7 will delve

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The Situation Report: the Home Care Association of New York State

Volume 3, No. 31 July 23, 2018 

further into the proposed payment changes for 2019 and 2020, with the opportunity for members to ask questions and obtain key updates for your budgeting in the coming years. Please register today by downloading the brochure and accompanying registration form here: https://hca-nys.org/wp-content/ uploads/2018/06/HCA-Senior-Financial-Managers-Retreat-Brochure-2018.pdf.

State Rate Coverage of Min. Wage Increase for MLTCs and Providers a Major Focus Rate adequacy for managed long term care plans (MLTCs) and providers is a major concern and focus in the new rate build-up by the state Department of Health (DOH) and the state’s new fiscal agent. While always a priority concern, this rises to new levels in the context of this year’s budget cuts in certain MLTC rate factors, coupled with the increased mandatory minimum wage level, on top of general wage growth and other escalating obligations.

Recently, DOH presented analyses intended to profile how the new minimum wage cost levels are being factored into and “accommodated within” the new MLTC rates.

The Department’s materials maintain that, “on a State Fiscal Year (SFY) basis, the minimum wage funding in the 2018-19 rates has increased from 2017-18.” The materials go on to qualify that, while “if you were to unwrap the funding it appears that there was more funding allocated to Calendar Year (CY) 2018 in SFY 2017-18 compared to 2018-19, the reason the CY 2018 unit cost adjustment appears to decrease is due to updated data received through plan cost reports and provider surveys.”

While the Department asserts that “contracted rates between plans and providers should be sufficient to support the increases associated with the minimum wage law,” HCA has utmost concern with this presentation for plans and providers, and whether the rate methodology is in reality meeting MLTC and provider rate needs. Under the public health law, rates must be adequate overall to meet wage and all other statutory and regulatory obligations, including the full scope of patient service and operating obligations. While the DOH material focuses on its assertion that rates “should be sufficient” to support increases for minimum wage, much is in question as to how the overall rate changes and adjustments, including cuts, will result in an adequate rate to plans and providers for all cost/payment obligations.

This is also taking place in the context of many simultaneous changes – including upheavals – in the plan/ provider environment with contract limits, nursing home enrollment changes, movement to value based payment phase two contracting and more.

HCA has asked to meet with the new Acting Medicaid Director and other DOH reimbursement and program principals to discuss payment concerns for plans and providers, along with the major consequential changes impacting this year’s operations and rate cycle.

In preparation, HCA is reaching out further to gather critical data with plans and providers. In addition, HCA asks MLTCs and providers to contact us to directly share information to assist in this assessment and advocacy.

For further information, please contact a member of the HCA Policy Staff.

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Volume 3, No. 31 July 23, 2018 

HIRING

Staff Development Education Supervisor – Home Health Full Time 9am-5pm NYU Winthrop Hospital’s Home Health Agency ranks as a top-performing US Home Health Agency! Come join our stellar team of nurses, therapy professionals and social workers who provide home health care to our maternal, child and adult population.

We have an exceptional opportunity for a Staff Development Education Supervisor to be responsible for home health staff education, development and professional growth, including our orientation program (didactic & practical components). With collaboration of the Director of Quality Management/Staff Development and the department’s management team, you will identify, develop and plan appropriate staff development programs to support agency needs to provide optimum patient outcomes. Working with the Administrator and the Director of Patient Services, you will research, coordinate & establish new programs for the agency.

We require:  NYS RN License  BSN with education experience  2-3 years clinical nursing practice  2 years community health nursing  2 years satisfactory nursing experience in a supervisory capacity in a certified home health agency or a long term home health care program, or community health setting  Good communication/computer skills NYU Winthrop Hospital is located on Long Island in Western Nassau County just 25 miles from Manhattan. Email HRHomeCare@nyuwinthrop.org.

Executive Vice President and Chief of Home Care Services, Visiting Nurse Service of New York As the nation’s largest not-for-profit home- and community-based health care organization, VNSNY is transforming to become a leading home- and community-based care management organization.

Reporting directly to the President and Chief Executive Officer, the Executive Vice President and Chief of Home Care Services will lead and direct our Certified Home Health Care Agency, Licensed Home Care Services Agency, and Hospice Organization and will also have oversight of Business Development, Community Mental Health, Population Health, and Care Management programs. He/she will be responsible for the overall strategies of our home care services, and will work closely with the senior leadership team to execute on VNSNY’s short and longterm objectives.

Required Experience:  10+ years of progressively responsible leadership in a complex, integrated healthcare, hospital, and/or home health provider organization.  Excellent financial and operational track record; proven ability to manage a challenging and changing healthcare delivery system.  Master’s Degree in a healthcare-related field.

If you are looking to contribute your skills and experience to an innovative organization that makes a difference for over 48,000 individuals in the community each and every day, email your CV to: Andrew Wise, VP, Talent Management and Organizational Development, Visiting Nurse Service of New York, Andrew.Wise@vnsny.org

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HCA’s Testimony Opens State DOL Hearing on 24-hour/live-in Rule As reported in an alert to members on July 12, HCA led off the testimony at the July 11 state Department of Labor (DOL) hearing on proposed standards for 24-hour shift compensation provided to workers, including home health aides.

The DOL-proposed standards outline compensation requirements to explicitly exclude sleep time and meal periods from compensable hours. However, such standards for home care have been the subject of recent litigation, as extensively described for the membership and in our testimony. (HCA’s testimony is at https://hca-nys.org/wp-content/uploads/2018/07/Testimony_state-Dept-of-Labor-hearing_24-hourcare_071118_FINAL.pdf.)

HCA was joined at the hearing by a host of employer and worker stakeholders, including home care representatives, fiscal intermediaries, managed long term care plans, law firms and individual aides.

Our comments focused on home care applicability of the proposed rule, and its significance to the stability of the system, the state, the patients and the workers. We emphasized that the funding and rules for home care service delivery are subordinate to state and federal dictates and payment levels.

Therefore, the standard of paying aides for 13 hours on live-in cases (also known as the “13-hour

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standard”) is dictated by longstanding DOL and state Department of Health (DOH) rules and methodologies authorizing and paying for these services.

HCA further emphasized that, under this standard, aides are not precluded from being paid for more than 13 hours if attending to their patients’ needs results in them not getting 8 hours of sleep (of which 5 hours are uninterrupted) and 3 hours for meals.

It is unclear how DOL will proceed on this proposed rule or a similar home care-specific emergency rule that DOL issued in October 2017 (and subsequently renewed numerous times) under which DOL codified “the Commissioner’s long-standing and consistent interpretation that compensable hours worked under the state Minimum Wage law do not include meal periods and sleep time of home care aides who work shifts of 24 hours or more.”

HCA has reached out to state DOL and will provide further details once we learn more.

HCA has also submitted comments on the proposed rule (which were due July 16); they are at https://hcanys.org/wp-content/uploads/2018/07/DOL-24-hourlive-in-rule-_comments_070318_FINAL.pdf.

HCA has worked extensively for stability of the “13-hour rule” for 24-hour/live-in cases, including advocating for DOL and DOH guidance and support, submitting amicus briefs on important court cases that involve challenges to this standard, and holding member briefings and education programs on this vital provider and patient issue.

Editor’s note: a longer version of this article was sent to members in an alert (see https://conta.cc/2Lc6VCE).

CMS Proposes Rule on Payment Diversion Exceptions that May Impact Providers The U.S. Centers for Medicare and Medicaid Services (CMS) is proposing to remove a regulatory provision that allows a state to make payments to third parties on behalf of an individual provider for certain benefits.

A press release on the rule is at https://www.cms.gov/Newsroom/MediaReleaseDatabase/Press-releases/ 2018-Press-releases-items/2018-07-10.html and the proposed rule is at https://www.gpo.gov/fdsys/pkg/FR2018-07-12/pdf/2018-14786.pdf.

CMS says that Medicaid providers must be paid directly and cannot have part of their payments diverted to third parties outside of a few very specific exceptions. In 2014, CMS allowed a new exception authorizing a state to divert part of the Medicaid payment to third parties that could then be used to fund other costs on behalf of the provider. This includes “for benefits such as health insurance, skills training, and other benefits customary for employees.”

CMS has determined that the 2014 exception is not consistent with statute and it may have resulted in provider payments being diverted in ways that do not match the law or occurred unbeknownst to providers.

CMS is requesting comments on the effects of this proposed rule, including whether and how it would impact self-directed service models that appear to be most likely affected. CMS also seeks comments that describe

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the additional flexibilities needed for self-directed service models to ensure stable, high-quality care for those beneficiaries.

While CMS is not sure how much of an effect this change will have, it estimates that the rule could be “economically significant” as it may have an annual effect on the economy in excess of the $100 million threshold of the federal Executive Order 12866.

The National Association for Home Care and Hospice has stated that it does not believe the rule will impact agency-model providers as the main focus involves ‘individual providers’ of home care and these providers are not employed by home care agencies.

HCA has reached out to the state Department of Health and organizations representing and/or providing consumer-directed services to determine the potential effect of this change.

Despite July 1 Deadline, MCOs Advised Not to Terminate Contracts Yet for Providers Who Missed Enrolling Though the July 1 “deadline” has passed, the state Department of Health (DOH) advises plans not to terminate any of their provider contractors yet for failure to enroll in Medicaid by this date.

Instead, managed care organizations (MCOs) are advised to: 

Amend their contracts with providers to include a provision that requires the providers to enroll in Medicaid;



Check enrollment and pending enrollment data to track compliance; and



Identify and reach out to providers who have not complied with this requirement.

According to DOH, the U.S. Centers for Medicare and Medicaid Services (CMS) has not issued an enforcement date for the termination of providers from an MCO’s network of providers for failure to enroll in Medicaid. In fact, CMS has advised DOH to continue to enroll providers in order to prevent access-tocare issues. Further guidance is expected in the next few months.

HCA has repeatedly reminded home care providers that it is necessary to enroll in Medicaid if they contract with managed care plans.

Links to Medicaid applications, a list of those providers who have submitted applications, frequently asked questions and other helpful information are at https://www.emedny.org/info/ProviderEnrollment/ ManagedCareNetwork/index.aspx.

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Volume 3, No. 31 July 23, 2018 

Court of Appeals to Hear EO No. 38 Challenge On September 5, New York’s highest court, the Court of Appeals, will hear a challenge (LeadingAge New York, et al v. Shah) to the state’s Executive Order (EO) No. 38 regulations. HCA is a co-petitioner on the case.

As extensively reported to the membership, EO No. 38 places caps on executive compensation and administrative costs by certain “covered entities” receiving state-derived funds.

The courts last ruled on this case on June 22, 2017 when the Appellate Division, Third Department upheld the so-called “hard cap,” but not the “soft cap” on executive compensation and administrative costs. In other words, the court accepted the state’s limits on compensation or expenses derived from state-only and state-authorized payments, but the court determined that the state exceeded its authority by limiting executive compensation that is paid from all funds, including state and non-state funds. This ruling conflicts with other decisions by the Second Department that the Court of Appeals will likely be asked to sort out.

At this time, EO No. 38 remains in effect statewide. However, regarding the rule’s applicability in Nassau County specifically, there appears to be a conflict between previous court decisions and the state’s ongoing notification to providers. While the Supreme Court, Nassau County struck down the EO No. 38 regulations, a later decision by the Appellate Division, Second Department overturned the Nassau ruling. Nevertheless, the state’s EO No. 38 website still contains a notice that entities conducting business in Nassau County do not need to file EO No. 38 disclosures, even though this appears in conflict with the prior ruling that restored the applicability of EO No. 38 in that county. (Providers who conduct business in Nassau County should consult with their counsel on compliance in light of this apparent discrepancy.)

EO No. 38 Disclosure forms are to be filed on the date that a provider’s cost report is due. More information is on the EO No. 38 website at https://executiveorder38.ny.gov/.

CHHA and Personal Care Medicaid Cost Reports Due Soon HCA reminds members that the Certified Home Health Agency (CHHA) 2017 Medicaid Cost Report was due July 16, 2018 (though there remains a possibility for seeking additional time) and the Personal Care Provider 2017 Medicaid is due July 30, 2018.

For CHHAs who need additional time, the state Department of Health (DOH) has agreed to HCA’s request for an extension, but on a case-by-case basis. CHHAs wishing for an extension to July 31, 2018 should immediately contact Russell Smith (russell.smith@health.ny.gov) at DOH to request additional time.

Both the CHHA and Personal Care Cost Reports are available on the Health Commerce System (HCS) at https://commerce.health.state.ny.us/public/hcs_login.html.

Questions about the Cost Reports should be sent to CHHA-Rates@health.ny.gov for CHHAs and PersonalCare-Rates@health.ny.gov for the Personal Care Cost Report (please copy Andrew Koski at akoski@hcanys.org).

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Court Hearing Held on Suit Against FI Advertising Provision Last week, a court hearing was held on a suit by the Consumer Directed Personal Assistance Association of New York State (CDPAANYS) against a state budget provision that requires Fiscal Intermediaries (FI) to have their marketing materials approved by the state Department of Health (DOH).

CDPAANYS joined three individual fiscal intermediaries in suing DOH in the Southern District Court on the premise that the advertising restrictions placed on FIs effective April 1 violate the terms of the First Amendment of the U.S. Constitution.

CDPAANYS has asked the court for a temporary restraining order and preliminary injunction. At the court hearing, according to CDPAANYS, the judge denied DOH’s motion to Upcoming Deadlines dismiss, but did not

grant a preliminary Requirement/Change Effective/Due Date More Information injunction. CDPAANYS Transition Period for Using Health counsel was assured Insurance Claim Number (HICN) or April 1, 2018 to December https://www.cms.gov/Medicare/NewͲ MedicareͲCard/index.html new Medicare Beneficiary Identifier 31, 2019 that enforcement action (MBI) would not be taken by the Department until Due July 16, 2018 the guidance on FI (extensions may be Certified Home Health Agency 2017 Request for extensions go to marketing is granted, as per HCA’s Medicaid Cost Report russell.smith@health.ny.gov request to DOH; contact promulgated.

DOH for details)

CDPAANYS advises FIs that the marketing statute is not in effect, and FIs are free to advertise and marketing materials don’t need to be submitted to DOH for approval until guidance is issued and an order is made by the judge.

In addition to requiring submission of advertisements to DOH, the budget provision provides that an FI shall not publish any advertisement that is “false or misleading.”

HCA will notify members once DOH releases any guidance.

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Changes to NYC Fair Workweek Law July 18, 2018

https://www1.nyc.gov/site/dca/index.page

Comments due on state Department of Health proposed Due July 30, 2018 rule on advanced home health aides

https://regs.health.ny.gov/sites/default/files /proposedͲ regulations/Criminal%20History%20Record %20Checks%20and%20Advanced%20Home %20Health%20Aides.pdf

Personal Care Provider 2017 Medicaid Cost Report

https://commerce.health.state.ny.us/pu blic/hcs_login.html

New Due Date: July 30, 2018

2018 Adult Care Facility 2nd Quarter Due July 31, 2018 Statistical Information Report

https://commerce.health.state.ny.us/public/ hcs_login.html

Comments due on state Education Department emergency/proposed Due August 26, 2018 rule on advanced home health aides

http://www.regents.nysed.gov/common/re gents/files/618ppca2.pdf

All NY employers are required to adopt sexual harassment prevention policies and provide annual training

Effective October 9, 2018

www.labor.ny.gov https://dhr.ny.gov

MLTC Enrollment LockͲIn Starts

December 1, 2018

https://www.health.ny.gov/health_care/me dicaid/program/update/2018/2018Ͳ 06.htm#mltc

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Volume 3, No. 31 July 23, 2018 

EVV Delay Legislation Passes U.S. Senate Goes to President for signature As reported in an alert last week to members, the U.S. Senate on July 17 passed H.R. 6042, legislation that extends the deadline for state Medicaid programs to implement Electronic Visit Verification (EVV) for personal care services (including consumer-directed services) from January 1, 2019 to January 1, 2020.

The legislation already passed the House of Representative in mid-June and will be sent to the President who can sign or veto it.

In addition to a one-year delay, the bill eliminates a penalty on Medicaid reimbursement to states for not implementing EVV in 2019, allows the U.S. Centers for Medicare and Medicaid Services (CMS) to waive this penalty in 2020 for a state’s “good- faith efforts,” and includes an opinion resolution (known as a “Sense of Congress”) that CMS obtain stakeholder input.

The EVV requirement is different from a similar one in New York State for providers to utilize verification organizations (VOs) to conduct pre-claim review of aide services. That New York State law, by contrast, is applicable to home health aide and personal care aide services (not consumer directed services) provided by organizations with more than $15 million in Medicaid fee-for-service (FFS) and managed care revenues.

It will not be affected if H.R. 6042 is signed by the President.

HCA has already met with the state Department of Health (DOH) twice to discuss EVV implementation and has advocated for ways to minimize any disruptions to agency services and operations, adequate time to implement EVV, funding for this unreimbursed requirement, and our involvement in any stakeholder workgroup that would vet the design of EVV systems and policies.

As mentioned in previous articles in The Situation Report, CMS has created a website that includes guidance on the EVV requirement at https://www.medicaid.gov/medicaid/hcbs/guidance/electronic-visitverification/index.html.

HCA will notify members once the President acts on the bill.

Editor’s note: a longer version of this article was sent to members in an alert (see https://conta.cc/2LtiC8c).

New Home Health PEPPER Now Available Home health agencies can now obtain the fourth quarter 2017 release of the Program for Evaluating Payment Patterns Electronic Report (PEPPER) with statistics through December 2017. It is available for download through the PEPPER Resources Portal at https://securefile.tmf.org/#.

PEPPER summarizes provider-specific data statistics for Medicare services that may be at risk for improper payments. Home health agencies can use the data to support internal auditing and monitoring activities.

Continued on next page

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Continued from previous page To obtain your agency’s PEPPER, the Chief Executive Officer, President, Administrator or Compliance Officer should: 1. Review the Secure PEPPER Access Guide at: https://pepperresources.org/Portals/0/Documents/ PEPPER/PEPPERresourcesorgSecurePEPPERAccesssGuide.pdf.

2. Review the instructions and obtain the information required to authenticate access. Note: A new validation code will be required. Also required is a patient control number (UB04 form locator 03a) or medical record number (UB04 form locator 03b) from a claim for a traditional Medicare fee-forservice beneficiary with a claim “from” or “through” date between October 1-December 31, 2017.

3. Visit the PEPPER Resources Portal at https://securefile.tmf.org/# 4. Complete all the fields.

5. Download your PEPPER. The report will be available to download for approximately two years.

A webinar reviewing the new PEPPER is set for Thursday, July 25 at 3 p.m. To register, visit the HHA Training and Resources page at https://pepperresources.org/Training-Resources/Home-Health-Agencies.

Questions, comments or assistance on PEPPER is at https://pepperresources.org/Help-Contact-Us.

NYS Health Foundation Announces Funding for Conference Participation The New York State Health Foundation (NYSHealth) has announced funding for community-based organizations, health departments, and other low-resource organizations to attend and present at local, state, and national conferences related to NYSHealth funding areas.

Such areas include: building healthy communities, empowering health care consumers, and meeting the needs of returning veterans and their families.

Applications will be accepted on a rolling basis. An online application is at https:// newyorkstatehealth.foundationconnect.org/GrantsManager/Pages/ EligibilityQuiz.aspx?OrgID=00D80000000d0Xg&QuizID=a0t0h000009uF7b&InquiryRT=0121A000000i70p.

Scholarships of up to $2,000 per person will be available for up to 2 attendees at each organization (a maximum of $4,000). Funding will be used for registration fees, travel and lodging costs, and incidentals for attendees while at the conference. Indirect costs will not be considered.

More information, including a link to the request for proposals, is at https://tinyurl.com/yazkc8vg.

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The Situation Report: the Home Care Association of New York State

Volume 3, No. 31 July 23, 2018 

CMS Proposes Changes to DME Competitive Bidding On July 11, the U.S. Centers for Medicare and Medicaid Services (CMS) proposed changes to the payment rules for Durable Medical Equipment Prosthetics, Orthotics and Supplies (DMEPOS). Beginning January 1, 2019, and until new contracts are awarded under the DMEPOS Competitive Bidding Program, beneficiaries may receive DMEPOS items from any Medicare-enrolled DMEPOS supplier.

This is a change from existing requirements where fee-for-service Medicare beneficiaries must obtain DMEPOS from certain suppliers who have been awarded contracts from CMS under a competitive bidding process.

CMS’s rule proposes: changes to bidding and pricing methodologies under the DMEPOS competitive bidding program; adjustments to fee schedule amounts; new payment classes for oxygen and oxygen equipment and a new methodology for ensuring that all new payment classes for oxygen and oxygen equipment added since 2006 are budget neutral; and special payment rules for multi-function ventilators or ventilators that perform functions of other DMEPOS. More information is at https://www.cms.gov/Newsroom/MediaReleaseDatabase/Fact-sheets/2018-Factsheets-items/2018-07-11.html.

HCS Troubleshooting Guide Posted The state Department of Health (DOH) has posted an “HCS Account Management Guide” to help providers who encounter issues with the Health Commerce System (HCS).

Some of the areas addressed include: what to do if an individual forgets the HCS password and/or HCS user ID; information about an application; how to obtain an HCS account; how to assign and/or delete roles; and how to update contact information.

The guide is at https://commerce.health.state.ny.us/relogin (go to Newsroom Highlights, July 11, 2018).

Guidance Issued on Registries and FLSA Applicability On July 13, the U.S. Department of Labor’s Wage and Hour Division (WHD) released a Field Assistance Bulletin 2018-4: “Determining Whether Nurse or Caregiver Registries are Employers of the Caregiver.”

The Bulletin is at https://www.dol.gov/whd/FieldBulletins/fab2018_4.pdf.

It provides guidance to Wage and Hour Division (WHD) field staff to help them determine whether home care, nurse, or caregiver registries are employers under the Fair Labor Standards Act (FLSA). A registry is an entity that typically matches people who need caregiving services with caregivers.

According to the Bulletin, a registry that simply facilitates matches between clients and caregivers – even if the registry also provides certain other services, such as payroll services – is not an employer under the FLSA. Continued on next page

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The Situation Report: the Home Care Association of New York State

Volume 3, No. 31 July 23, 2018 

Continued from previous page A registry that controls the terms and conditions of the caregiver’s employment activities (i.e. directs and controls the caregiver’s work schedules and assignments and sets the caregiver’s rate of pay) may be an employer of the caregiver and, therefore, subject to the requirements of the FLSA. Determining whether a registry is an employer for FLSA purposes will require a thorough analysis of the registry’s business model and operations. It is a case-by-case analysis. The Bulletin addresses some common registry business practices that WHD analyzes during investigations to determine whether an employment relationship exists.

NHTD Waiver Application Approved The state Department of Health (DOH) has announced that the Nursing Home Transition and Diversion (NHTD) Waiver application was approved by the U.S. Centers for Medicare and Medicaid Services (CMS) on July 12, 2018.

DOH will offer a webinar to review the application changes in the near future and will post the NHTD application soon. According to DOH, there are not a lot of changes from the draft posted for public comment at https://www.health.ny.gov/health_care/medicaid/redesign/mrt90/docs/2017_1915c_nursinghomeapp.pdf.

Next steps include: additional notifications to waiver participants; review of Incident Reporting Protocols; and form and procedure updates.

Questions can be directed to nhtdwaiver@health.ny.gov.

Workers’ Comp Board Announces Technical Specifications for CMS-1500 Initiative The state’s Workers’ Compensation Board has announced its timetable for replacing the current Board treatment forms: Doctor’s Initial Report (Form C-4), Doctor’s Progress Report (Form C-4.2), Occupational/ Physical Therapist’s Report (Form OT/PT-4), Psychologist’s Report (Form PS-4), and Ancillary Medical Report (Form C-AMR) with the CMS-1500.

According to the Board, this initiative will leverage providers’ current medical billing software and medical records while promoting a more efficient workers’ compensation system.

It is expected that the initiative will roll out in three phases on January 1, 2019, July 1, 2019, and January 1, 2020. Please see http://www.wcb.ny.gov/content/main/SubjectNos/sn046_1079.jsp.

Worker’s Compensation Rates Expected to Decrease The state Worker’s Compensation Board (WCB) has announced that state Department of Financial Services approved the filing submitted by the Rating Board for a decrease of 11.7 percent in the overall loss cost level in New York State, effective October 1, 2018.

Loss costs by classification will be published in a subsequent bulletin and posted on the Rating Board’s website on or before August 1, 2018.

The announcement is at http://www.nycirb.org/bulletins/rc2467.pdf?platform=hootsuite.

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The Situation Report: the Home Care Association of New York State

Volume 3, No. 31 July 23, 2018 

April Global Cap Report: Medicaid Spending $8M Above Projections The state Department of Health (DOH) has issued its latest monthly Medicaid Global Cap report.

The full report is at: https://www.health.ny.gov/health_care/medicaid/regulations/global_cap/monthly/ sfy_2018-2019/docs/apr_2018_report.pdf.

The Medicaid Global Spending Cap has increased from $19.5 billion in fiscal year (FY) 2018 to $20.8 billion in FY 2019, an increase of 6.7 percent. This April 2018 report marks the first report for the new fiscal year. It finds that overall spending for this period was $8 million above Medicaid Global Cap projections, across all sectors, a difference of $1.855 billion in actual spending versus $1.847 billion in estimated spending for the period.

Specifically, DOH mentions the following two significant pressures on the Global Cap: 

Medicaid spending in major Medicaid Managed Care categories was $10 million under projections.



Medicaid spending in major fee-for-service categories was $23 million over projections with inpatient spending $10 million above estimates. This is a result of slightly higher-than-expected utilization, DOH reports.

As with all other provider or managed care categories, the category “other long term care” (which includes home care, but also other long term care sectors) exceeded its monthly cap, by $2 million, but DOH did not provide any additional explanation for this variance as it has in past reports.

In other report highlights: 

Total Managed Long Term Care (MLTC) spending was $17 million below projections, primarily due to lower-than-expected partial capitated claims submitted by plans.



Total Medicaid enrollment reached 6,178,590 enrollees at the end of April 2018. This reflects a net increase of 26,523 enrollees since March 2018.

For further information, contact Patrick Conole at (518) 810-0661 or pconole@hcanys.org.

Resources 

“New Medicare Beneficiary Identifier (MBI) Get It, Use It,” by the U.S. Centers for Medicare and Medicaid Services https://www.cms.gov/Outreach-and-Education/Medicare-Learning-Network-MLN/ MLNmattersArticles/downloads/SE18006.pdf



“Weaknesses Exist in Medicaid Managed Care Organizations’ Efforts To Identify and Address Fraud and Abuse,” by the Office of Inspector General https://oig.hhs.gov/oei/reports/oei-02-15-00260.pdf

For more information, contact Andrew Koski at (518) 810-0662 or akoski@hcanys.org.

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